EMPEROR Vs. AJIT KUMAR GHOSH

JUDGEMENT

(1.) In this case we arc concerned with an appeal by nine persons who have been convicted by Mr. Roy Choudhury, the Sessions Judge of Faridpur, under Rule 56 (4)/121, Defence of India Rules and also with a reference made by the learned Judge in respect of 14 accused persons who, in his opinion, should be convicted under Section 147, Indian Penal Code. The history of this case is somewhat peculiar. All the accused persons with whom we are concerned in the appeal and the reference were originally placed on their trial, together with a number of other persons, before Mr. Hattiangadi who had been appointed a Special Judge for this purpose under the provisions of Ordinance 2 of 1942. The trial before Mr. Hattiangadi began on 29th March 1943 and continued from day to day until 22 April, 1943 on which date the statements of the accused persons were recorded under Section 342, Criminal P.C. On 21st April 1943 this Court pronounced judgment in Emperor V/s. Banwari Lal Sarma. Reported in ( 43) 30 A.I.R. 1943 Cal. 285: 207 I.C. 481 (S.B.) The judgment declared that Secs.6, 10 and 16 of ordinance 2 of 1942 were ultra vires of the powers of the Governor-General under Section 72 of Schedule 9, Government of India Act, 1935, and it followed from this decision that a trial held by a Special Judge such as Mr. Hattiangadi was without jurisdiction. As a result of this decision, the Public Prosecutor, on 26 April 1943, made an application to Mr. Hattiangadi for the stay of further proceedings against the accused. He heard the Public Prosecutor and counsel for the accused and recorded an order to the effect that: This Court's authority has terminated as a consequence of the ruling of the Hon ble High Court which was to the effect that the appointment of Special Courts was ultra vires. The trial so far is therefore without authority and it accordingly terminates.

(2.) Thereafter proceedings were taken against the accused persons under the ordinary provisions of the Criminal P. C. and, on 25 September 1943, 27 of these persons were committed to the Court of Session and seventeen were discharged. On 18th December 1943, a supplementary commitment order was recorded in respect of Jyotish Chandra Sarkar. On 3 January 1944 the 28 persons who had been committed to Sessions were placed on their trial before Mr. Roy Chowdhury, the Sessions Judge of Faridpur, on charges under Secs.147 and 302/34, Indian Penal Code, and Rule 56 (4)/121, Defence of India Rules. The latter charge was triable with the assistance of assessors, while the others were triable by jury. This being the case, nine persons (three Muslims and six Hindus) were empanelled as jurors and the same persons were also appointed as assessors for the trial of the charge under the Defence of India Rules. The case for the prosecution was to the effect that, by an order (to which further reference will be made later in this judgment) dated 27th March 1941, the District Magistrate of Faridpur had prohibited all public processions and meetings unless permission had been obtained from himself or some other proper authority In defiance of this order it is said that the accused persons took out a procession, from the compound of the Kalibari at Bhanga in the Faridpur district and that some of them attacked the police officers who had formed a cordon round the compound, with the object of preventing the processionists from passing. A riot ensued during the course of which a Sub- Inspector was killed and two constables were severely injured.

(3.) The case for the defence was to the effect that the prosecution case with regard to the alleged violation of the District Magistrate's order was entirely false and it was alleged that the occurrence which took place on 19 September 1942, was in fact due to a communal riot between Hindus and Muslims, which was the result of a long standing tension between the members of the two communities. It was said that on the day of the occurrence a ceremony was being performed in the house of Dr. Bonbehari which was adjacent to the Kalibari, and that some Hindus who were taking their meals there objected to certain Muslims entering the Natmandir while they were eating. It was suggested that this action on the part of the Hindus infuriated the Muslim police officers with the result that Sub-Inspector, Azaharuddin, provoked a communal riot in the course of which Sub-Inspector Rohini Kumar Ghose, was killed by some Muslims who had a grudge against him. It was also said that this riot led to the subsequent looting of Hindus houses and the removal of some Hindu families from Bhanga.